The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Akin Martins has filed a pro se motion under 28 U.S.C. § 2255, seeking to vacate his convictions and sentence for narcotics-related offenses. Martins asserted six claims of ineffective assistance of his trial counsel, Ronald Clark. The Court previously rejected four of those claims and gave Martins the opportunity to submit further briefing of the other two. In this decision, the Court denies Martins' remaining claims.
Martins was one of five men charged with narcotics offenses relating to a heroin importation and distribution ring alleged to operate in Chicago between May 2002 and May 2003. He was charged with conspiracy to possess heroin with intent to deliver; use of a telephone on November 27, 2002 to carry out the conspiracy; and possession of heroin with intent to deliver on that same date. Three of Martins' co-defendants pled guilty, cooperated with prosecutors, and testified against Martins at trial. Martins was tried jointly with co-defendant Yemi Odulate; both were convicted on all the charges against them. The court of appeals affirmed Martins' conviction and sentence.
In his section 2255 motion, Martins asserted six claims of ineffective assistance of trial counsel. In an earlier decision, the Court rejected four of those claims -- those based on Martins' contention that trial counsel should have filed a motion to dismiss the indictment as unduly vague; he should have tried to obtain an exculpatory affidavit from Odulate; he did not exploit alleged inconsistencies between the testimony of two of the cooperating co-defendants, Al Stevens and Olajide Omosanya; and he failed to offer the post-arrest statements of Stevens and Patrick Adeniyi. United States v. Martins, No. 07 C 3003, 2008 WL 244313, at *3-6 (N.D. Ill. Jan. 25, 2008).
The Court's ruling left open Martins' two other claims (those the Court identified in its earlier ruling as claims two and four). See id. at *3-4. In claim two, Martins alleged that his trial counsel failed to seek, before trial, more details regarding the charges and transactions in which Martins was involved. Martins alleged that this prevented him from defending against the charges because if he had more specifics, he could have provided counsel with an alibi or other exculpatory evidence. The Court declined to rule on this claim because it became apparent that Martins did not have a copy of the so-called Santiago proffer that the government had filed and served on Martins' trial counsel prior to trial. The Court directed the government to provide Martins with a copy of the proffer and gave Martins "the opportunity to supplement his second claim to attempt to make a particularized showing of prejudice." Id. at *4.
In claim four, Martins alleged that trial counsel failed to adequately cross-examine the government's witnesses at trial to pin them down on details so Martins could present an adequate defense. The Court declined to rule on this claim, finding it to be "intertwined with what remains of Martins' second claim," such that ruling on it would be unfair unless Martins had an opportunity to review the Santiago proffer to attempt to make a showing of prejudice. Id.
Following Martins' receipt of the Santiago proffer, he filed a supplemental memorandum with the Court.*fn1 The Court now addresses Martins' two remaining claims.
To show that he received ineffective assistance of counsel, Martins must establish that his counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel's deficient performance, the outcome of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 688-89 (1984).
A Santiago proffer typically consists of a pretrial submission setting forth the basis for the government's contention that the Court should provisionally admit co-conspirator declarations in evidence, subject to laying the evidentiary foundation at trial. See, e.g., United States v. Rodriguez, 975 F.2d 404, 406 (7th Cir. 1992); see generally United States v. Santiago, 582 F.2d 1128, 1130-31 (7th Cir. 1978) (requiring trial court to make a preliminary determination regarding the admissibility of the declaration of the coconspirator offered by the government). In the Santiago proffer the government submitted in Martins and Odulate's case, it described the roles of each claimed co-conspirator and provided a particularized description of narcotics-related dealings on July 8, 2002, November 25, 2002 (including summaries of two intercepted communications on that date), November 27, 2002 (including summaries of fifteen intercepted communications and an observation made by surveillance officers), and November 30, 2002. The government also provided a detailed summary of the anticipated trial testimony of Stevens, Omosanya, and Theodore Fabriek, the three cooperating co-defendants expected to testify at trial. The factual material in the government's submission covered twelve double-spaced pages altogether.
Having now reviewed the Santiago proffer, Martins makes the following contentions to supplement claim two: 1) the Santiago proffer should have been presented to the jury at trial; 2) the proffer is inconsistent with allegations in the indictment; 3) if Martins had been aware of the proffer, he would have insisted that counsel subpoena the alleged co-conspirators that the government did not call to testify, who, Martins says, would have exculpated him; 4) the proffer included references to certain events that did not involve Martins; 5) it did not include a description of every conversation offered at trial. Martins also repeats his contention (previously ...